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House Committee recommends some key changes to strengthen federal Lobbying Act and enforcement system, but fails to address huge loopholes that allow secret, unethical lobbying of the federal government

House Committee recommends some key changes to strengthen federal Lobbying Act and enforcement system, but fails to address huge loopholes that allow secret, unethical lobbying of the federal government

Conservatives must close all loopholes to end secret lobbying as they promised they would in 2006

Thursday, May 17, 2012

OTTAWA – Today, Democracy Watch and the national Government Ethics Coalition called on the Conservative Cabinet to go further than the recommendations of the House Access to Information, Privacy and Ethics Committee by changing the federal Lobbying Act and enforcement system in 10 key ways to finally end secret, unethical lobbying of the federal government.

The Act is so full of loopholes, it should be called the “Some Lobbying by Some Lobbyists Act”. And even if all of the House Committee’s recommended changes were made, secret and unethical lobbying would still be allowed because of huge loopholes in the law. All parties are to blame for this, because even though the so-called New Democrats proposed some additional changes beyond the Committee’s recommendations, their proposals also failed to address the loopholes.

“By failing to strongly recommend closing all the loopholes in the federal lobbying law that allow for secret, unethical lobbying, even by former Cabinet ministers and senior government officials, and by failing to recommend changes that will ensure strong and strict enforcement of the law in every case, MPs from all parties have failed Canadians and failed democracy,” said Tyler Sommers, Coordinator of Democracy Watch. “We can only hope that the federal Conservative Cabinet will go further than the Committee and introduce a bill that keeps their 2006 election promise to close all the loopholes and strengthen enforcement in ways that will finally end secret, unethical lobbying of the federal government.”

The three huge loopholes that the Committee MPs from all parties failed to address, and that will remain open unless the Conservatives close them in the bill they will hopefully introduce to change the Act, are that:

secret lobbying will still be legal if the lobbyist is not paid for their lobbying (a consultant lobbyist can easily arrange for clients to pay them for other services while lobbying for free, and former Cabinet ministers and senior government officials collecting rich pensions can afford to lobby for free, and they are the people who most need to be stopped from lobbying because of the undue and unethical influence they can have on their former colleagues);

secret lobbying will still be legal if a lobbyist is lobbying about the enforcement, interpretation or application of laws and regulations (which is a huge area of lobbying, especially for big businesses), and;

secret emails, texts, phone calls and even meetings between lobbyists and Cabinet ministers and senior government officials will still be legal as long as the minister or official initiates the communication or meeting (which they will do whenever they want to have secret, unethical relations with a lobbyist — only oral, pre-arranged communications initiated by the lobbyist are required to be disclosed).

Since 2004, even without doing random audits and inspections, the Commissioner of Lobbying has caught 32 lobbyists violating the Lobbying Act, but none of them have been prosecuted because of these and other loopholes in the law. These law-breaking lobbyists have also never been identified and are likely still lobbying the government.

Lobbyists who exploit loopholes in the Act and don’t register and disclose their lobbying activities are not required to comply with the ethics rules in the Lobbyists’ Code of Conduct, and former Cabinet ministers and senior government officials and politicians who exploit the loopholes are not covered by the 5-year ban on lobbying after they leave office. This is why it is so important to close all the loopholes — any loopholes that are left open will be exploited by unethical lobbyists for unethical lobbying, and these people will continue to be let off without any penalty.

The Committee also failed to address the biggest problems with enforcement of the Lobbying Act and Code — the Commissioner of Lobbying and RCMP and Public Prosecutor must be required to do random audits and inspections, and to investigate and issue public rulings in every case. In addition to the 32 lobbyists who violated the Lobbying Act since 2004 but were not prosecuted, the Commissioner of Lobbying has failed to fully investigate and issue public rulings about more than 55 other situations where allegations were made that a lobbyist violated the Act or the Lobbyists’ Code of Conduct.

So while the House Committee recommended that the Commissioner be given the power to fine violators, it is unfortunately likely that the Commissioner would never use this power anyway unless required to issue rulings in every case.

This enforcement record is as bad overall as the former disgraced federal Integrity Commissioner Christiane Ouimet who was fired by the Conservatives in fall 2010. However, not one MP from any party has ever asked Commissioner of Lobbying to disclose details about the 32 lobbyists and 55 situations (likely because the lobbyists who broke the law are public supporters of one or another of the federal parties and so the MPs are protecting their parties and themselves from embarassment by failing to push for disclosure of the identities of these law-breaking lobbyists).

The Committee also ignored the simplest solution to end secret, unethical lobbying of the federal government — require every politician, political staff person, appointee and decision-making public servant to disclose the identity of anyone who communicates with them in any way directly or indirectly about their decisions, and the details of the communications (as the Conservatives promised to require in their 2006 election platform).

The Conservatives are members of the international Open Government Partnership (OGP) which requires, among other key changes, strengthening laws like the Lobbying Act and keeping their commitment to increase public integrity. If they do not close all the loopholes in the Lobbying Act, and strengthen enforcement, they will be violating their OGP commitments.

To see Democracy Watch’s and the Government Ethics Coalition’s 10-page submission to the Committee, click here (PDF), and/or see summary list of much-needed changes to the Lobbying Act and enforcement system below.

Changes needed to ensure transparent and ethical federal government lobbying under the Lobbying Act and to ensure the Commissioner of Lobbying enforces rules effectively(NOTE: Democracy Watch urged the Oliphant Commission to recommend all of the following changes in its May 2010 report)

close the loophole that currently allows corporations to hide the number of people involved in lobbying activities (employees of corporations who lobby less than 20% of their work time are not required to be listed in the corporation’s lobbying registration);

require lobbyists to disclose their past work with any Canadian or foreign government, political party or candidate;

require lobbyists to disclose all their government relations activities (whether paid or volunteer and on no matter what issue (NOTE: currently unpaid lobbyists are not required to disclose, nor lobbyists who lobby about the enforcement of laws or administration of programs) involving gathering inside information or trying to influence policy-makers (as in the U.S.) — or require all government decision-makers to disclose all their contacts with anyone trying to influence them (as the Conservatives promised they would in the 2006 federal election);

require lobbyists to disclose the amount they spend on lobbying campaigns (as in 33 U.S. states);

the search page for Lobbyist Registry must be changed to allow for searches by any data field in the registry (currently, the database can only be searched by the name and client(s) or organization of the lobbyist, the department being lobbied and the subject matter, and the lobbying time period);

prohibit lobbyists from working for government departments or serving in senior positions for political parties or candidates for public office (as in New Mexico and Maryland), and from having business connections with anyone who does;

close the loophole MPs added to their MPs Code in May 2009 that allows lobbyists to provide unlimited volunteer services of any kind in secret to any MP without any conflict of interest being created, and make the MPs Code a law;

ban all senior politicians, staff, appointees and senior government officials from lobbying (paid or unpaid) for five years for anyone they had dealings with during their last five years in office (currently former senior politicians and only full-time government officials only have to sit out for one to two years), and ban all junior politicians, staff appointees and officials from doing the same for one to three years depending on their decision-making power;

anyone participating in the “employment exchange program” (who are mainly people from large corporations) must be covered by the five-year ban on senior public office holders becoming lobbyists;

ban lobbyists from becoming members of Cabinet for at least four years after they are elected as a federal politician;

the Commissioner of Lobbying must be required to conduct random audits of everyone covered by the Lobbying Act and the Lobbyists’ Code of Conduct;

prohibit the Commissioner from giving secret advice;

ensure that the Commissioner must investigate and rule publicly on all complaints (including anonymous complaints) and empower the Commissioner to investigate and rule on complaints even if the police are investigating the lobbyist for a violation of another law at the same time;

require the Commissioner to disclose the identity of rule-breakers (although Democracy Watch’s position is that she is legally required to disclose this information in her annual report)

empower and require the Commissioner to penalize rule-breakers, even for violations of the Lobbyists’ Code with significant fines (as recommended by the commissioners from Ontario, B.C., Alberta and Québec);

ensure all Commissioner decisions can be reviewed by the courts;

give opposition party leaders a veto over the appointment of the Commissioner of Lobbying;

the Commissioner of Lobbying must be required to submit public, bi-annual reports to a parliamentary committee that include details about the wrongdoing alleged in each complaint; the date each complaint is received; when each investigation began and finished; when the Commissioner received the investigation report; when the Commissioner/courts ruled and ruling details; how many people formally trained/informed by the Commissioner’s Office; number of information requests received by subject and other core operational information;

have Parliament (as opposed to Cabinet) approve the Commissioner’s annual budget (as is currently the process for the Ethics Commissioner);

as with the Conflict of Interest and Ethics Commissioner position, any person nominated and chosen to be the Commissioner of Lobbying must be required to have legal experience enforcing ethics rules or laws to ensure proper enforcement of the Lobbying Act and the Lobbyists’ Code of Conduct, and;